Severance of Joint Tenancy By Conduct

Severance of Joint Tenancy

Severance of Joint Tenancy

 

The Tessier v Tessier 2001 SKQB 399 reminds one that even the simple fact of parties signing an agreement to sell the jointly owned property and pay the proceeds into separate accounts can sever the joint tenancy into a tenancy in common.

 

The deceased and husband were joint tenants of a farm property on which they resided until retirement. In 1996 they decided to sell the property to the husband’s nephew and his wife and an agreement for sale was executed in the presence of parties’ lawyer .

The  Agreement set out a schedule of payments which were to be made equally to deceased and husband, who maintained separate bank accounts.

The  Deceased died in 1999 and by her will left residue of estate to be divided among her siblings in equal shares , and the Will made no specific reference to the land.

 

The Executors of the estate brought proceedings contending that the sale had severed the joint tenancy so that one-half balance owing under agreement for sale was an asset of estate.

 

The Court held  Joint tenancy had been severed.

Two distinguishing features of joint tenancy are the   right of survivorship and the four unities of title, interest, possession and time.

The  Onus of establishing that a joint tenancy has been severed is on person so contending.

A Sale or lease by all of joint owners does not itself result in severance because this arrangement is compatible with continuation of joint ownership in relation to proceeds of sale .

However,  the deceased and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were maintained by them in separate bank accounts .

These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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